The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-07-30

mitigation OF his offense. There Is no trouble
at all in mans being party to a conspiracy
to procure himself to omit duty. This count
is criticised in other respects which may be
more important, il founded IN fact. The OBJ
lection is in respect to the proof rather than to
the count itself. The act done in order to con-
summate the alleged conspiracy in this case is
that Coy and others, to the grand jury unknown
did some acts to the grand jury unknown.
omit to do his duty. The proposition is
advanced that the burden rests upon the
government to show that these things were
unknown to the grand jury. 1 have taken
pains TO run that question down closely Coun-
sci did not hand me his authorities and did not
take them down at the time; but some of the
cases referred TO / know are cases whore the fob
lection made that the proof adduced
showed that the grand jury not ignorant
of the matters alleged in the Indictment as I'M
known. That was the case in Third Indiana
and l believe in Sixty fifth, and the Supreme
Court held that it having been made to appear
that that indictment was not true, the proeecu-
ton ought to have failed. And to that extent,
at least, the doctrine is true. and you may
cept it even that the burden the pros
ecution to show that fact. The proof.
however. may be circumstantial, and if
on the proof. as made before you it is
still apparent that it is not known who did the
things thus charged TO have been done by per-
sons unknown and that the unknown things
charged to have been done are yet unknown and
have not been developed in the evidence before
you, you may fairly infer that the grand jury
had no better evidence and that the averment is
true as made. Another question has been pre-
sented upon the first count in reference to Allen
Hisey. and possibly the same objection is made
in reference to Mr.. Counselman. Counsel say
that while Allen Hisey the inspector of his
precinct that after the papers were maze up
and signed, another member of the board,
judge, carried the papers away, and had them
In bis possession for some time, and afterwards
delivered them to Mr. Hisey. Counsel insist
that under these circumstances Mr.. Hisey was
not the legal custodian of the papers. Two of the
advocates of the defendants advanced this propo
siton and yet each of them. in the of his
argument, asked you to find as matter of fact
that the judges who took these papers took them
In pursuance or accomplishment of a conspiracy
TO get them outof the possession of the inspector
Both counsel urged upon you that they were oo-
tanned from the inspector by conspiracy. Ii
that Is true 1t would relieve me OF consideration
of the legal question presented by the first propo
sition. Counsel can hardly ask TO occupy two
inconsistent positions, position of asserted fact
they base their legal proposition Ba
without regard to this Inconsistencies
and without going into detail about my reasons
for SO ruling, say to you that there is nothing
in the proof which affects the proposition that
Allan Hisey, as inspector, had the lawful
custody of the papers in question: and that when
he parted with them to Perkins, there is
dispute he did, he was acting as the lawful Gus
todian of the papers, and acted unlawfully in
surrendering possession. and Perkins, in receiV-
ing it, and if Perkins acting co-conspir-
ator with others in that act they were equally
guilty with him. and to that extent the charge
contained in this count of the Indictment Is es-
LaOllSQeQ Inc same rule WOulO apply TO MT.
Counseman, If the question arises In respect to
him. / am not quite sure whether it does arise
The charge against the defendants is conspira-
CIV, and it becomes proper for me to say what a
conspiracy Is, although counsel have very prop
erly stated that, in SO far as l know, without
disagreement. There is nothing mysterious
all about the meaning of the word conspiracy"
although the transactions which are accom-
plished under conspiracies are often mysterious
and past finding conspiracy is simply
agreement, a combination between two or more
m do IN la vl aRf nr n n a la Vyfr
act In an unlawful way. 1t is not necessary that
there should have been any formal agreement
between the parties to do the acts charged. 1t
would bs sufficient if the minds of the
parties Understandings meet to bring
about intelligent and deliberate intention
to do the acts and commit the crime
charged, although such agreement was not man
ifested by any formal words. The Supreme
Court of the State has aptly expressed the defni-
ton In these words in a very recent decision
which hold in my hand: Concurrence of senti-
ment and CO operative conduct in unlawful
enterprise and not formality of speech are essen
tial ingredients in criminal conspiracy" Where
it appears that parties are acting under such
agreement or conspiracy, then, of course. each is
responsible for the acts of the other; conse-
quenty 1t is not necessary to prove. after the
conspiracy is proved, that each member of the
conspiracy has had anything to do with tho
accomplishment if it. It is necessary as against
each defendant, in order to convict him, that il
shall be- shown that he was a member of the con-
,piracy, and, until that fact Is shown the acts
IF other conspirators are not to be deemed bind
ng on him. He can be bound only by his own
ACTS until by his own acts or words he has
himself with the conspiracy. Once he
las connected himself with the conspiracy he
becomes responsible for the acts of the others in
;he conspiracy while the conspiracy is pending
Ind its purposes unaccomplished. OF course,
after the acts of the conspiracy are accom-
olished the others are no longer his agents, to
ak about him and bind him by their talk
conduct. But while the execution of the con-
piracy is pending, and after it is shown that any
me of the defendants has become a member of
hat conspiracy the acts or talk of the others, in
he course of the execution OF the scheme are
binding upon him; and. indeed, one who becomes
member of a conspiracy after its first forma-
ion. knowing of its existence, binds himself by |
What had been done before in the execution of |
he scheme, assuming, of course that the |
cheme has not been executed when he becomes |
member He binds himself only by what |
las been done, but by what shall be done until |
Until the scheme is executed or completed.
Now them gentlemen, SO far as the gene: al |
principles applicable to this case are concerned, |
think I have stated all that need to say The |
emander OF what / wish to say will be with |
aspect to the evidence. and the application of
he facts proven to the different defendants. /
epeat here that what shall say in this respect
only advisory; you not bound by it. You
must ultimately exercise your own judgment
he charge against the defendants is, as have
aid, that they conspired to get tally sheets and
Their election returns out of the possession of
ertain inspectors. The proof on this subject is
xtended 30 acts done after the tally sheets
'ere actually out of the possession of the lawful
etrated upon the tally sheets. AS l said to
on before, this is not involved in the crime, as
harged, but it is involved in the evidence, to
nable you to determine who did perpetrate the
rime charged. Who did procure these in
pectors to omit their duty in respect to their
apersf The government charges that these de-
together with Perkins. who has
loaded guilty were tle conspirators to do these
cts. The defendants deny this, and their
ounsel in making his opening statement of the
ass to you, besides denying the guilt of the de-
,dants, asserted that Perkins the guilty
ne who alone did all the work. Their position
7as. in the opening, and SO far as l have OBJ
srved-and l was somewhat careful in OBJ
,rving-the position was maintained through
le discussion in behalf of the defendants that
lese offenses which not denied and which
Re visible to the eye are the work OF Perkins
one
Now, gentlemen, in the discharge of your duty
this case, it is quite appropriate and logical
n you to take up and dispose of that question
-st Did Perkins do all this work2 We have
sfore seven sets of Wallpapers. Now, be-
pO to the question O whether Perkins did |